Exhibit 10(D)



 





Exhibit 10(d)




AMENDED AND RESTATED

LOAN SUBPARTICIPATION AGREEMENT




     This Amended and Restated Loan Subparticipation Agreement (this
“Agreement”) is made and entered into as of March 30, 2004, between Huntington
Preferred Capital Holdings, Inc., an Indiana corporation (“Transferor”) and
subsidiary of The Huntington National Bank (“Huntington”) and HPC Holdings-III,
Inc., a Nevada corporation (“Transferee”).



RECITALS




     A. The parties have previously entered into a certain Loan
Subparticipation Agreement, dated as of May 12, 2003 (the “Original
Agreement”), whereby Transferor has transferred and will continue to transfer
to Transferee participation interests in certain loans (the “Loans”) made by
Huntington or an affiliate of Huntington to various borrowers (collectively,
the “Borrowers”), as such Loans have been and may be identified from time to
time by Huntington, or substituted for other Loans previously transferred by
Huntington to Transferor, in accordance with the Second Amended and Restated
Loan Participation Agreement, dated as of March 30, 2004, between Huntington
and Transferor (the “Participation Agreement”).



     B. Huntington will service the Loans as set forth in the Participation
Agreement.



     C. The parties desire to amend and restate the Original Agreement.



AGREEMENT




     l. Definitions.



          (a) “Loan Documents” shall mean any and all loan agreements evidencing or
otherwise relating to any of the Loans, together with any and all commitment
letters, promissory notes, real estate mortgages, assignments and security
agreements, financing statements, pledge agreements, letters of credit,
applications and agreements for standby letters of credit, letter of credit
reimbursement agreements, subordination agreements, waivers, affidavits, fire
and extended coverage insurance policies, guarantees, title insurance policies,
applications, reports, surveys, documents required to be maintained by lenders
pursuant to any applicable federal or state regulations, any and all
amendments, modifications or supplements to any of the foregoing from time to
time, and all other relevant documents pertaining to any of the Loans.



          (b) “Collateral” shall mean the real property, fixtures, equipment,
inventory, accounts, chattel paper, instruments, documents, general
intangibles, securities and all other property and property rights in which
Transferor has been granted a mortgage, lien or security interest in connection
with any of the Loans.



          (c) “Origination Fees” shall mean the origination, commitment, or other
fees collected at the time of origination of a particular Loan.




 









 








          (d) “Participation” and “Participation Interest” shall mean the interest
of Transferee in the Loans and associated Origination Fees, equal to a one
hundred percent (100%) participation interest in Transferor’s participation
interest in the Loans and associated Origination Fees.



          (e) “Participation Share,” “Pro Rata Share,” “pro rata,” and “ratably”
shall mean a share in the same proportion as the respective percentage
ownership interests of Transferor and Transferee in the Loans and associated
Origination Fees.



     2. Transfer of Participation Interests.



          (a) Transferee shall from time to time buy from Transferor or from an
affiliate of Transferor, without recourse, a continuing undivided fractional
Participation Interest, and Transferor shall from time to time sell to
Transferee, or cause an affiliate or affiliates of Transferor to sell to
Transferee, such Participation Interests. The purchase price for a particular
Participation Interest transferred shall be 100% of the purchase price paid by
Transferor to Huntington for its Participation Interest. Transfers of
Participation Interests by Transferor or an affiliate of Transferor to
Transferee hereunder may, upon the mutual agreement of the parties at the time
any such transfers are made, be made (i) as additional contributions to the
capital of Transferee, (ii) in exchange for the payment of cash by Transferee
to Transferor or appropriate affiliate of Transferor, (iii) in consideration of
the issuance to Transferor or appropriate affiliate of Transferor of shares of
the capital stock of Transferee, or (iv) for such other consideration as the
parties shall mutually agree.



          (b) At the time of any transfer of a Participation Interest, Transferor
assigns to Transferee, without recourse, all of Transferor’s beneficial right,
title and interest in the Loans, including any Collateral for the Loans and
associated Origination Fees, and any uncollected payments or collections on
account of the Loans. Transferor shall hold title to the Loans, including any
Collateral payments and collections as agent for Transferee. Transferee shall
pay to Transferor any fees payable to Huntington in connection with the
servicing of the Loans under the Participation Agreement.



          (c) Each of the Loans which shall be subject to this Agreement shall be
(i) identified on a completed “Certificate of Participation” in the form of
Exhibit A attached hereto, which shall be delivered by Transferor to Transferee
and shall contain at least the name of each Borrower, the date of the
promissory note evidencing each Loan, the original principal amount of each
Loan, the amount of any associated Origination Fees, and the purchase price
associated with the same; or (ii) otherwise identified electronically or in the
loan files for the Loans, in a manner that is mutually agreeable to Transferor
and Transferee and sufficient to properly identify the Loans.



     3. Representations and Warranties. At the time of transfer of
Participation Interests to Transferee, Transferor represents and warrants that
Transferor has full right, power, and authority to grant and convey the
Participation Interests to Transferee, and, at the time of transfer of
Participation Interests to Transferee, the Participation Interests are free and
clear of all encumbrances or other interests of any other person.




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     4. Transferee’s Risk. Transferee acknowledges and agrees that Transferor
has made no representation or warranty and has no responsibility as to: (i)
the collectibility of the Loans; (ii) the Borrowers’ creditworthiness or
financial condition; (iii) the legality, validity, binding effect or
enforceability of the Loan Documents; (iv) the filing, recording or taking of
any other action with respect to the Loan Documents; (v) any other matter
having any relation to the Loans, the Loan Documents, this Agreement, the
Borrowers, or any other person or entity except as otherwise specifically set
forth herein. Transferee acknowledges that Transferor has made available to it
copies of the Loan Documents requested by Transferee. Transferee acknowledges
and agrees that it has made its own independent investigation and determination
with respect to the foregoing matters and accepts full responsibility therefor.
The sale of the Participation Interests by Transferor to Transferee pursuant
to this Agreement shall be and is without recourse of any nature.



     5. Custody and Ownership of Loan Documents and Collateral. Transferor
shall have and maintain physical possession of all the Loan Documents and
Collateral, to the extent that possession is necessary to perfect a security
interest in any Collateral. Transferor shall use reasonable care to safeguard
and protect the Loan Documents and Collateral. Transferor is authorized to
deal with the Loans in Transferor’s own name, subject to the terms and
conditions of this Agreement, and, as far as third parties are concerned, to
act on behalf of Transferee as though Transferor were the sole owner of the
Loans; provided, however, that all of Transferor’s actions with respect to the
Loans will be subject to this Agreement.



     6. Nature of Transferee’s Participation Interest. Transferee’s
obligations hereunder constitute absolute, unconditional and continuing
obligations to make funds or credit available to Transferor for Transferor to
extend credit to any of the Borrowers and pay letters of credit issued for the
account of any of the Borrowers pursuant to the terms of the Loan Documents and
will be unaffected by (i) any amendment or waiver of any term of the Loan
Documents, (ii) any extension, overadvance, indulgence, settlement or
compromise granted or agreed to in relation to the Loan Documents, (iii) the
release of any Collateral or any guaranty of the Loans, (iv) any invalidity,
unenforceability, or insufficiency of the Loan Documents or of any drafts or
other documents submitted in connection with draws under any letters of credit,
(v) any default by or insolvency of any of the Borrowers, (vi) any act or
omission on Transferor’s part relating to this Agreement or the Loan Documents
(absent gross negligence or willful misconduct), (vii) the absence of notice to
Transferee of any of the foregoing, (viii) any requirement that Transferor take
any action against any of the Borrowers or any other person liable on the
Loans, and (ix) any defenses in law or equity which Transferee may have to the
full discharge of its obligation under this Agreement (absent gross negligence
or willful misconduct by Transferor).



     7. Delinquency and Foreclosure. In the event of any default of any of the
Borrowers, which default shall be continuing for more than 30 days, Transferor
shall use its best efforts to give Transferee notice of such default.
Transferor may take such action as it deems advisable, including exercising
Transferee’s right to commence foreclosure actions or accept deeds in lieu of
foreclosure, pursuant to and in accordance with guidelines and limitations
provided by Transferee to Transferor in writing from time to time.
Notwithstanding the above, Transferor shall at all times take such action as
Transferee may recommend in writing to




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Transferor as necessary to protect the interests of both Transferor and
Transferee, including, but not limited to, commencement of foreclosure actions
or acceptance of deeds in lieu of foreclosure.




     8. Participation Not a Security. Transferee represents and warrants to
Transferor that (i) Transferee does not consider the acquisition of its
Participation Interest hereunder to constitute the “purchase” or “sale” of a
“security” within the meaning of the Securities Act of l933, the Securities
Exchange Act of l934 or Rule l0b-5 promulgated thereunder, the Trust Indenture
Act of l939, the securities laws of the State of Ohio, any other applicable
securities statute or law, or any rule or regulations under any of the
foregoing, (ii) such Participation Interests constitute a commercial
transaction by Transferee with Transferor regarding Transferee’s Participation
Interests in the obligations of the Borrowers under the Loans and associated
Origination Fees and do not represent an “investment” (as that term is commonly
understood) in Transferor or the Borrowers, (iii) Transferee is purchasing its
Participation Interests hereunder for its own account in respect of a
commercial transaction made in the ordinary course of its commercial banking
business and not with a view to or in connection with any subdivision, resale,
or distribution thereof, and (iv) Transferee is engaged in the business of
entering into commercial transactions (including transactions of the nature
contemplated herein and in the Loans), can bear the economic risk related to
the purchase of the same, and has had access to all information deemed
necessary by it in making its decision whether or not to purchase the same.



     9. Successors and Assigns. Transferor shall not assign this Agreement in
whole, but may assign to one or more participants all or part of Transferor’s
ownership interest in the Loans. Transferee shall have no right to assign or
further participate any of its Participation Interest to anyone other than a
subsidiary or other affiliate of Transferor or Transferee without the prior
written consent of Transferor. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto.



     10. Notices. All notices hereunder shall be in writing and shall be
personally delivered to the address or addresses of the party receiving the
notice or mailed to such party at such address or addresses by certified or
registered mail, return receipt requested, postage prepaid. Either party may
change its address or addresses for notices and designate or change the
location in which payments to such party will be made by a notice to the other
party. Notices which are mailed shall be deemed received by the addressee on
the third working day following the date of such mailing. Notices to
Transferor shall be addressed as follows:


Huntington Preferred Capital Holdings, Inc.

201 N. Illinois, Suite 1800

Indianapolis, Indiana 46204

Attention: President




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Notices to Transferee shall be addressed to Transferee as follows:



HPC Holdings-III, Inc.

3993 Howard Hughes Parkway, Suite 250

Las Vegas, Nevada 89109

Attention: President



     11. Relationship of Parties. With respect to the purchase and sale of
Participation Interests, Transferor and Transferee shall occupy the
relationship of buyer and seller of a property interest. There is not intended
hereby and shall not be construed to exist any fiduciary relationship between
Transferee and Transferor, or any partnership or joint venture between
Transferee and Transferor. With respect to servicing, Transferor shall be an
independent contractor of Transferee. In no event shall either party be
considered an agent or employee of the other party.



     12. Interpretation. This Agreement and the rights and obligations of the
respective parties hereunder shall be governed by and interpreted in accordance
with the laws of the State of Indiana.



     13. Amendments. This Agreement may not be amended, altered or modified
except by a written instrument signed by both the parties.



     14. Amendments to Participation Agreement. The Participation Agreement
may not be amended, altered, or modified without the written consent of
Transferee.



[signatures appear on the following page]





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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.


	 	 	 	 	 
	 	HUNTINGTON PREFERRED CAPITAL HOLDINGS, INC.

 	 
	 	By:  	/s/ Cindy L. Keitch
 	 
	 	 	Cindy L. Keitch, President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	HPC HOLDINGS-III, INC.

 	 
	 	By:  	/s/ Christopher J. Monigle
 	 
	 	 	Christopher J. Monigle, President 	 
	 	 	 	 
	 





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Exhibit A




Certificate of Participation




Huntington Preferred Capital Holdings, Inc.

201 N. Illinois, Suite 1800

Indianapolis, Indiana 46204



Date: _____________




HPC Holdings-III, Inc.

3993 Howard Hughes Parkway, Suite 250

Las Vegas, Nevada 89109

Attention: Christopher J. Monigle, President



	 	 	 	 	 
	 

	 	Re:
	 	Amended and Restated Loan Subparticipation Agreement between us dated
as of March 30, 2004







Ladies and Gentlemen:



     Pursuant to the terms of the above-referenced Amended and Restated Loan
Subparticipation Agreement, this will confirm that, as of this date, we have
transferred and assigned to you an undivided 100% interest in our participation
interest in the loan or loans described in the schedule attached to the
Certificate of Participation relating to the Second Amended and Restated Loan
Participation Agreement, dated as of March 30, 2004, between The Huntington
National Bank and Huntington Preferred Capital Holdings, Inc., or the Loan
Participation Agreement, dated as of July 1, 2002, between The Huntington
National Bank and Huntington Preferred Capital Holdings, Inc., which are
hereafter to be subject to the Amended and Restated Loan Subparticipation
Agreement.



     This Certificate of Participation is in addition to all previous
Certificates issued pursuant to the Amended and Restated Loan Subparticipation
Agreement.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
 
	 	 	 	 	 	 
	 	 	
	 	 
	

	 	Name:	 	 	 	 
	

	 	 	 	

	 	 
	

	 	Title:	 	 	 	 
	

	 	 	 	
	 	 
	 
	 	 	 	 	 	 








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